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Ken White is a First Amendment litigator and criminal defense attorney at Brown White & Osborn LLP in Los...

In late 1965, a 13-year-old student named Mary Beth Tinker wore a black armband to Warren Harding Junior High School in Des Moines, Iowa, to support a truce in the Vietnam war. The school suspended Mary Beth Tinker for violating a a policy the district had enacted to forbid just such protests. Through her parents, Mary sued the school. Tinker v. Des Moines made its way to the Supreme Court. The Court held that the school violated the students’ First Amendment rights by prohibiting armbands without sufficient evidence that they substantially disrupted the regular operation of the school. But in the years since this landmark case, the Supreme Court has sided more and more with a school’s right to restrict or punish speech.

In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White dives into the Tinker v. Des Moines case and how it has impacted freedom of speech for students on campuses today. While Mary Beth Tinker’s rights were upheld, many plaintiffs in First Amendment cases today have faced less sympathetic courts. Ken and his guests discuss the cultural and historic factors that have led to that retreat.

The episode features the thoughts and perspective of Mary Beth Tinker herself, who remains an activist for student free speech. Ken also interviews Frank LoMonte, a professor of journalism and the recent head of the Student Press Law Center, an advocacy group that helps protect the rights of high school and college journalists.

Transcript

Ken White: In 1965, a 13-year-old girl named Mary Beth Tinker started getting the sort of abuse that eighth graders usually don’t face.

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Mary Beth Tinker: I started getting hate mail and people sending threatening mail and messages. A lady called up on the phone and asked if it was Mary Beth and I said yes, and she said, I am going to kill you.

Someone threatened to bomb our house on Christmas Eve. They threw red paint at our house. They would always call us communists and send us postcards with hammer and sickle on it and say, why don’t you go back to Russia or China? My mom would say, we are not communists, we are Methodists.

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Ken White: Who is Mary Beth Tinker and why would people be saying these terrible things to her and why are we still talking about it more than 50 years later?

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Mary Beth Tinker was a kid who stood up and spoke her mind, or maybe more accurately, she wore her heart on her sleeve. Mary Beth Tinker wore a black armband to protest the war in Vietnam to Warren Harding Junior High School in Des Moines, Iowa. She was suspended, her family sued, and the case took her all the way to the United States Supreme Court where she helped establish crucial precedent about the free speech rights of students, something she fights for to this day.

Mary Beth Tinker: We thought it was pretty ordinary actually even to wear the armbands. I mean, we didn’t — we had no idea that it was going to turn into a big, big deal.

Ken White: But it was a big deal, and ordinary people can make history too. I am Ken White and this is Make No Law: The First Amendment Podcast from Popehat.com brought to you on the Legal Talk Network.

This is Episode 2, The Schoolhouse Gates.

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Ken White: In December 1965, Senator Robert Kennedy urged a Christmas truce in Vietnam.

Robert Kennedy: “If I can be quite frank about it, I, based on my two meetings with the — the National Security Council meeting – I thought that there was too much – which I said to Bob McNamara – that there was too much emphasis, really, on the military aspects of it. That and, I would — I would think that that war will never be won militarily, but where it’s going to be won, really, is the political war.”

Mary Beth Tinker: There was a national protest against the war in Vietnam. The first national protest was November of that year, 1965, and about 1,000 US soldiers had been killed by that Christmas. And so there was a truce being proposed, a Christmas truce, by Robert Kennedy.

And us kids heard about it and we heard that some people were thinking about wearing black armbands after that national protest in Washington D.C. that year. And so some of the high school kids at Roosevelt High School and my brother John was at North High School, they heard about it, and I heard also, and so that’s how we decided that we would wear black armbands to mourn for the dead in Vietnam and to support the idea of a Christmas truce.

It only seemed logical to us. I think kids are pretty logical most of the time, because we were learning about peace and that time of year was about peace and love and forgiveness and we learned about that in church. And by this time my parents had become Quakers also. And in school, we learned about democracy and the First Amendment and speaking up for what you believe in, so it all kind of went together and we were acting out all of the lessons that we had been taught in our lives.

Ken White: One of the lessons Mary Beth Tinker’s parents taught her was to speak up about important things.

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Mary Beth Tinker: We were raised to believe that you should not only pay attention to what’s going on in the world, but also weigh in on those events of the day and help to determine the direction that the world is going in, and in that way you end up making history that you will be a little bit happier with maybe than what you would have if you said nothing and remained silent.

Ken White: But not everybody agreed with the Tinkers’ approach to parenting. Some people still thought that in school at least kids should be seen and not heard. The school district learned of the planned protest, and on December 14, 1965, the principals of the district met and adopted a policy that said that black armbands would be forbidden at school and that any student who wore them would be told to remove them and if they refused would be suspended.

Notably, the school district didn’t ban any of the other sorts of symbols that the kids routinely wore, like buttons for political campaigns, or in the case of one kid, the Iron Cross, a German Military symbol. Suddenly, Mary Beth Tinker wasn’t just an eighth grader faced with standing out and expressing herself, she was faced with doing that and breaking the rules.

Mary Beth Tinker: I was a very shy girl, I was in eighth grade and I wasn’t sure if I should do this, I certainly didn’t want to stand out. I just kept going back and forth and back and forth about it. But we had great examples in our lives of not only our parents, who spoke up for what they believed in, but also the kids in Birmingham, for example, in 1963, we had seen them on television and how they spoke up for racial equality in Birmingham and four of the little girls ended up being killed there that September 1963 by the Ku Klux Klan.

So we had examples of young people, kids also that spoke up and stood up for what was right, like racial equality, and we thought that was all part of democracy. So it was the combination of having great emotions about an issue and also examples in our lives of people who do speak up and stand up and a number of those people were children and teenagers.

Ken White: So Mary Beth decided to wear the black armband to protest the war in Vietnam. She made it herself out of a length of black ribbon and attached it to the arm of her sweater with a safety pin. And on December 16, 1965, she wore it to school in defiance of the ban.

Were you worried when you went to school with the armband, what would happen?

Mary Beth Tinker: I was very worried and nervous, and I saw my friend, Connie, and she said, you better take off that armband. You are going to get in trouble.

Ken White: The day before, Mary Beth’s teacher had spent an entire class talking about how kids shouldn’t wear armbands to school, which is ironic when you consider the school’s justification for banning armbands was that they would disrupt class. Mary Beth’s armband didn’t cause much disruption.

Mary Beth Tinker: Not too much happened in the morning and then at lunchtime some of the boys at the boys’ table started teasing me and saying, I want an armband for Christmas, and things like that, but I ignored them, as I always did.

Ken White: Her brother, John, didn’t experience much worse.

Mary Beth Tinker: John was hassled by some kids and a football player came up and said, kids, we have a First Amendment. John has his right to say what he wants even if we don’t agree with it.

Ken White: But even though the armband didn’t cause any real disruption, after lunch Mary Beth Tinker was called to the principal’s office.

Ken White: And suspended. Mary Beth’s father and the father of another student suspended for wearing an armband sued the Des Moines Independent Community School District, asking for an injunction, stopping the schools from enforcing the ban on wearing black armbands. They argued that the ban was a violation of the students’ civil rights.

The Federal Judge who heard the case dismissed it. He said that the ban was a reasonable measure to prevent a disturbance at the school. The United States Court of Appeals for the Eighth Circuit heard the case en banc, meaning that all of the judges of that court considered it rather than just a three judge panel. Those judges split down the middle on the question and divided evenly. Then, the Supreme Court agreed to hear the case. And in November 1968, they heard argument.

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The question before the court was this, did the schools violate the First Amendment by absolutely prohibiting black armbands protesting the Vietnam War without evidence that the armbands disrupted the school or because they were schools, did courts have to defer to their judgment about what speech should be allowed?

The school district really didn’t offer any evidence that the students wearing armbands had disrupted class and so a lot of the argument before the court was about whether such a symbolic statement was inherently disruptive just because it took attention from learning.

Here from a recording of the 1968 oral argument is Justice Byron White.

Justice Byron White: “Physically it wouldn’t make a noise. It wouldn’t cause a commotion, but don’t you think that it would cause some people to direct their attention to the armband and the Vietnam war and think about that rather than what they were thinking about and supposed to be thinking about in the classroom?”

Ken White: The court hinted at where it was going. Focusing on what a school would need to prove to support punishment of expression like Mary Beth Tinker’s.

Here is Justice Abe Fortas.

Justice Abe Fortas: “If the record showed that the wearing of the armbands significantly or substantially or materially or whatever is the right word interfered with the business of the classroom, that is communication between teachers and students, then you would say that disciplinary action would be justified?”

Ken White: On February 24, 1969, Mary Beth Tinker won. The Supreme Court ruled 7-2 that the Des Moines Schools did violate the First Amendment rights of the students by prohibiting the armbands without evidence that they actually caused disruption. This is what the court wrote in Tinker v. Des Moines.

Bob Ambrogi: First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.

Ken White: The court explained that the First Amendment applies to schools just like any other type of government entity and that schools need a reason to suppress speech, not just dislike of the message.

Bob Ambrogi: “The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures — Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the prohibition cannot be sustained.

Ken White: How important is Mary Beth Tinker’s case? I talk to Frank LoMonte, who is a Professor of Journalism at the University of Florida College of Journalism and Communications. But when I interviewed him, he was still the head of the Student Press Law Center, an advocacy group that helps protect the rights of high school and college journalists. Here’s how he described the Tinker case.

Frank LoMonte: Well, the Tinker decision really is the wellspring from which First Amendment rights in schools originate. The Tinker decision really was the clearest statement that the court has ever made that First Amendment rights do not end at the schoolhouse gate and at the start of the school day and from that decades of lower court case law have built upon it and have elaborated on where that boundary line between school authority and individual rights begins and end, but without Tinker you really might have a very different landscape entirely. I think Tinker really is the case on which all advocates rely for the proposition that First Amendment rights apply even on school grounds and even during the school day.

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Ken White: That’s the good news for student free speech. Here is the bad news. Since Tinker, the Supreme Court has steadily supported the authority of schools to restrict or punish speech over the rights of students. Time and time again the Supreme Court has found that student speech falls outside of the protections established in the Tinker case. Perversely, that may be because Mary Beth Tinker’s case was just too good.

Frank LoMonte: In a lot of ways when you look at the fact pattern of Tinker, it’s probably the easiest kind of case that you can imagine for the judiciary. It is speech about a contemporary political issue of national and global importance and it’s a very passive kind of speech, it’s just a display of apparel; it’s not even verbal, and so in a lot of ways if you were going to draw up a sketch of what the prototypical school First Amendment case would look like, you couldn’t do much better than Tinker in fact.

Ken White: In Mary Beth Tinker’s case there was no solid evidence that the armbands disrupted school. The school district barely tried to argue that they had. And the school didn’t restrict all on campus symbolic expression. They singled out only one viewpoint, opposition to the war in Vietnam, and they allowed others. And that sort of viewpoint, opposition to government policy that affects everyone is at the heart of what the First Amendment protects.

Other cases have proved much more complicated. For one thing, schools are much more shrewd now about creating a record showing that speech disrupted the school and courts are much more likely to believe them.

Frank LoMonte: The culture is quite different from the heyday of the Warren Court in which Tinker was decided and really ever since that time what you have seen is a greater sense of deference to authority. It’s kind of an unusual brand of conservatism. I hesitate to call it conservative, because the conservatism that I grew up with certainly did not say that the government gets to tell you what you are allowed to think and say.

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Ken White: Why are courts so deferential? Well, part of it is fear.

Frank LoMonte: Ever since particularly the Columbine School shooting and then followed by some of the more recent horrific cases that have occupied the headlines, judges are very prone to defer to any school authority who says that this or that restriction on students is necessary to avoid violence or to avoid the risk of tying the hands of schools to respond to a threat. And because of that sense that schools are operating in a dangerous environment where we don’t want administrators being bashful about using their authority in time sensitive situations, I think that the drift of the judiciary has been to say, well, who are we to micromanage and to second-guess the way that professionals do their jobs in schools.

Ken White: And there’s another reason for the reduction in students rights. Schools have figured out how to make use of the Heckler’s veto. The Heckler’s veto describes what happens when the government seeks to ban speech, not because the speaker is violent, but because people are going to react violently to the speaker.

Mary Beth Tinker’s lawyer, Dan Johnston of the ACLU, foresaw this as a problem during oral argument all the way back in 1968.

Dan Johnston: “I would like to make a distinction, if I may, between an expression of an opinion, which might itself disrupt the class and the expression of an opinion which might cause someone else to disrupt the class.”

Ken White: Outside of school, courts don’t let the government use the Heckler’s veto as an excuse to suppress speech, but in the school, with the heightened concern about violence and disruption, it’s a different story.

Frank LoMonte: It’s definitely true that the Tinker’s standard by its nature contemplates judicial sanction to what’s been called the Heckler’s veto outside of the school context. Clearly, the opponents of speech can’t legitimately shut down speech by overreacting to it. And so in the off campus world if a speaker at the podium in the public park incites people to the point where they start causing a riot and damaging property in the park, we know who the wrong doers are there. We know that clearly it is the vandals who are going to go to jail and it’s the vandals who are going to suffer the consequence of the government punitive authority.

In school, it’s less clear. Certainly the people who cause the vandalism are going to get disciplined, but so might the speaker.

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Ken White: Here is an example of the Heckler’s veto in action. In 2010, at a high school in Northern California, administrators forced students to remove shirts with American flags. Because they said the students were using those flags to antagonize other students, celebrating the Mexican holiday, Cinco de Mayo.

The administration claimed that past confrontations had resulted in violence and court said that the school could do this, that it didn’t violate the First Amendment rights of the students to be forced to remove American flag clothing because other students might react to it violently.

Frank LoMonte: The federal courts said that was a permissible use of Tinker. That because there were people who would abuse the American flag in ways that would provoke people into responding violently to the display of that flag that the school could shut down the display of the flag preemptively in anticipation of the violent result.

I don’t think that students themselves are making legal calculations based on this. I certainly don’t think that there are students who are familiar with the Tinker Standard that are purposely causing a disturbance in order to shut down people that they don’t like, but I do think that schools are necessarily and understandably risk averse and anything that even remotely portends violence these days is going to be shut down at the get-go, even if the fear is pretty remote.

Ken White: In 2016 and 2017, we even saw the Heckler’s veto extend to college campuses, when prominent universities canceled appearances by controversial speakers like Ann Coulter or Ben Shapiro on the grounds that their appearance might lead to violence.

The problem with the Heckler’s veto is this, it relies on the subjective reactions of listeners, not on whether there is something truly objectionable about the speech. The listener gets to decide by being violent whether or not the speaker is permitted to speak.

Another issue that’s steadily eroding Tinker’s high watermark of First Amendment protection is the increasingly blurry line between what’s on campus and what’s off campus. In Mary Beth Tinker’s case it was easy; she wore the armband on the campus, but in the era of the Internet, what’s on campus and what’s off?

Frank LoMonte: It’s sort of odd to talk about the history of Internet law cases, because they are only about 15 years old. But if you look back at the first generation of online speech cases where students were being disciplined for websites that called the coach a bad name or called the principal a bad name, the courts were really, really protecting those students’ rights to speak on their personal time off campus.

What I think caused the more recent wave of rulings, rulings where courts are regarding all student speech as being on campus with smartphones. Once everybody started walking around with a magical Internet machine in their pocket that courts started seeing online speech as being physically on campus. And while I am not unsympathetic with that, I certainly understand that social media has a lot of power to reach school, as a doctrinal matter you just can’t defend equating off campus speech with on campus speech, doctrinally.

It just isn’t possible that the school can have the same level of authority over speech that is purposefully directed at a captive audience of people inside of a school building, who cannot leave by law, as they do over speech that you utter on a Saturday afternoon, which is directed at a potentially much larger public audience, and one which people are free to click away from. It’s just not possible that the school authority can be equivalent over those two things and yet that’s kind of the sloppy shortcut that our judges have been drawing, I think for want of a better standard.

Ken White: Another reason that judges are retreating from the Tinker court’s robust protection of free speech for students is a very old one, a gripe that we hear again and again from every generation, these damn kids today.

Frank LoMonte: There was an instructive recent case that came out of the Fifth Circuit Court of Appeals and the Taylor Bell case, and this involved a student who recorded a rap video that he posted to YouTube off campus on personal time. And if you read the majority opinion in the Taylor Bell case, I think it could be summarized as sort of, get off my lawn, jurisprudence by a judge of some advanced years, who was saying students are just more violent, dangerous, bad people than they have ever been before and because they are just such bad people that schools need enhanced authority over their speech and that’s provably, demonstrably, statistically false.

(00:25:00)

By any objective measure students of today are better behaved than their parents were and the schools are safer place than their parents’ schools were, but because of this kind of get off my lawn, jurisprudence, it’s very challenging for advocates to win these cases.

Ken White: And then perhaps there is just the fact that most adults don’t think the way Mary Beth Tinker’s parents did. Fundamentally, they don’t believe students have something worthwhile to say.

Frank LoMonte: We do live in a very different time obviously. I think we live in a more risk averse time, where people just don’t value the contribution that students can make to the dialogue of public affairs anymore or they certainly don’t value it, overvaluing, keeping order during the school day. We just have different priorities now.

Ken White: Maybe another reason for the retreat from the Tinker Standard is that adults don’t believe student speech is really student speech at all. They assume that anything a student says on matters of national importance is just parroting what someone told them to say.

Mary Beth Tinker: Again, people are saying, oh, these kids are being used, they are being manipulated, and people always said that about us, too, that our parents are manipulating us, that we couldn’t know anything. We don’t know enough about Vietnam. But you know what, other people, the adults didn’t know very much about Vietnam either and young people have a perception of what’s going on in the world that is unique, that’s important and that should be valued.

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Ken White: It’s discouraging that more than 50 years after Tinker v. Des Moines students have narrower free speech rights, not broader ones. But for encouragement, to believe that the fight for student free speech is still worthy, you don’t have to look any further than Mary Beth Tinker herself.

After a career as a nurse working with children, she started devoting her time to something called the Tinker Tour, an educational program that travels the country and teaches kids about their First Amendment rights, because she believes they need those rights.

Mary Beth Tinker: So my motivation to talk to young people about standing up for their rights comes from our case and my experience with our case, but also my experience with working with young people and seeing how the status of youth is not good, and kids, they have problems. They are more likely to live in poverty for example. Infant mortality rate in our country is not good. They have homelessness, foster care, abuse, I mean there are so many issues. Their schools, they don’t have a lot of say over their schools and they don’t have a voice in their lives generally. And so I started putting it together and thinking that these kids really need to start standing up for themselves and their own interest.

Ken White: And so, when I tried to get away with a piece of grumpy old man conventional wisdom that modern young people are indifferent, Mary Beth Tinker was there to shut me down.

What is the bigger threat, the way you see it, to free speech, is it increasingly restrictive standards given by the Supreme Court or is it indifference by the youth of the community to wanting to stand up and say something the way you did?

Mary Beth Tinker: I have to say I don’t see indifference at all as I travel around the country. I see students who are standing up about so many things, whether it’s the environment. I mean, you have kids that are suing the EPA now over the way that they are caring for the land and the water and air.

And you have students in Hazelwood, Missouri, they had a big walkout a couple of weeks ago, standing up for their teachers, and the teachers who were negotiating a new contract. You have students standing up about, anything from dress codes, to homework, to lunches, to social issues, how budget are spent.

Ken White: I am pretty sure you could hear her snort there during my question. Back at the top of the episode you heard Mary Beth Tinker say that she thought she was ordinary. She is clearly not. But even if she were, freedom of speech in America relies on ordinary people, even scared kids standing up.

Mary Beth Tinker: So in my mind it’s a lesson as I talk to kids around the country today that you don’t have to be the greatest courageous hero of all time; you can be you, you can be a scared kid and nervous and have a tiny bit of courage and still do something, still make a difference in your way, and that’s exactly what happened.

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Ken White: Mary Beth Tinker is a First Amendment hero and it was an incredible privilege to interview her.

In this series of podcasts I will be telling you more stories behind important First Amendment decisions. If there is a case you want to hear about or a First Amendment question you would like answered on the podcast, drop me a line atHYPERLINK “mailto:[email protected]” [email protected].

Thanks for listening. You can find documents and cases mentioned on this podcast atHYPERLINK “http://www.popehat.com” popehat.com orHYPERLINK “http://www.legaltalknetwork.com/”legaltalknetwork.com.

If you liked what you heard today, please remember to rate us in Apple Podcasts and Google Play and follow us on Twitter or Facebook.

Lastly, I would like to thank our participants, voice actors, producers and audio engineers for their participation, my guests Mary Beth Tinker, Professor Frank LoMonte at the University of Florida, Bob Ambrogi for his read of the Supreme Court’s decision in Tinker, Producer Kate Nutting, Executive Producer Laurence Colletti, and last, but not least, music, sound design, editing, and mixing by Adam Lockwood.

Excerpts from the oral argument in Tinker v. Des Moines provided by Oyez, the free law project by Justia and the Legal Information Institute, Cornell Law School.

See you next time for Episode 3, On the Job.

Frank LoMonte: I think the Supreme Court decision basically said you have got to be a good employee and honor your master.

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Outro: The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Popehat, Legal Talk Network, or their respective officers, directors, employees, agents, representatives, shareholders, or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer, please.